‘Safe Harbor’ Case Mired in Confusion

A federal judge in Los Angeles has issued a complicated order in a
case that could impact the ecommerce industry’s ability to claim “safe harbor” protection against secondary copyright infringement under the Digital Millennium Copyright
Act (DMCA).

On Friday, Judge Terry Hatter of U.S. District Court for the Central
District of California, Western Division, accepted the claims of Robert
Hendrickson that Amazon.com as well as certain third-party vendors that used the
company’s service were liable for copyright infringement.

The case involved the sale of pirated copies of a documentary movie called “Manson” — a chilling
account (www.exclusivefilms.com) of Charles Manson family, members of which were convicted for participation in what was known as the 1969 “Tate-LaBianca” killings involving actress Sharon Tate. Hendrickson filmed and produced the documentary in the early 1970s.

In a brief two-page order, Judge Hatter wrote: “it is ordered that
plaintiff’s motion for summary judgment on the direct copyright claim as to
Martin Scriven, Music Recyclery, Mary Miller, Kevin Naser, CDDVDGametrader,
Mike T. Sawyer and Amazon.com, be, and hereby is, granted.

“It is further ordered that plaintiff’s motion for summary judgment on
the vicarious copyright claim Amazon.com as to Music Recyclery, Mary Miller,
Kevin Naser, CDDVDGametrader, Mike T. Sawyer, be, and hereby is, granted,”
according to a copy of the order obtained by internetnews.com.

Amazon.com would not comment in detail on the ruling. But a spokesman, Bill Curry, said: “We will be asking the judge for a clarification of what his ruling says.
There’s some ambiguities and we’ll be asking for a clarification.”

Adding to the confusion is the fact that Judge Hatter didn’t provide a
written opinion when he handed down the order on May 8.

“That does sound unusual,” said Douglas Isenberg, publisher of
Gigalaw.com.

Ironically, the Amazon case is similar to the suit that Hendrickson
brought against eBay — a
2001 case (which he lost) that has helped establish legal precedence for the
boundries of the DMCA’s “Online Copyright Infringement Liability Limitation
Act.” As a result of that widely reported September 2001 ruling, service
providers like eBay were found to have “Safe Harbor” protection from secondary liability for copyright infringement.

Yet that ruling was handed down by Judge Hatter’s colleague, U.S.
District Court Judge Robert Kelleher, who declined to hear the Amazon.com
case. Still, as conflicting as the two orders appear, legal scholars
explained that splits in the lower courts do occur.

“It is not uncommon for trial courts to reach different opinions in any
areas of the law particularly new areas involving online copyright issues.
Usually those differences are resolved in the appeals process or over time
as additional courts have the opportunity to intepret the same legal
provisions and concensus builds among the trial courts,” Isenberg said.

Hendrickson first brought the infringements to eBay’s attention in
December 2000. He sent a Notice of Infringement to the San Jose, Calif.,
online auction company in accordance with the DMCA, which stipulates that
infringers must be given notice of their actions. eBay tried to persuade
Hendrickson to join a companywide program designed to protect intellectual
property rights known as its Verified
Rights Owner
(VeRO) program. However, eBay’s attorneys successfully
argued that Hendrickson refused to sign up for VeRO and failed to provide
the specific details (like item #’s) of the infringing products. Hendrickson
filed the first of his lawsuits against eBay in January 2001.

Yet, despite the outcome of the eBay case, Hendrickson continued to
pursue enforcing the copyrights to his movie. In addition to the two
e-commerce giants, he also has sued Walt Disney & Co. and MCA.

Hendrickson sent Amazon.com a “cease-and-desist” letter, thereby
notifying the company of the infringement, in January 2002. Serving as his
own attorney as he did in the eBay case, he offered his own interpretation
of the DMCA as well as the ‘Hendrickson vs eBay’ decision in court filings.
He argued that “service provider/website” is not liable for infringing
activity conducted prior to a proper DMCA notice; however, once a notice
stating that all copies are unauthorized is served, the defendant should
then be liable for any and all infringing sales thereafter.

In a telephone interview, Hendrickson explained that Judge Hatter’s
ruling followed that argument that he outlined. The only defendant that
conducted a sale via Amazon.com prior to his January 2002 notice was Martin
Scriven. And according to Judge Hatter’s order, the only claim of vicarious
infringement against Amazon.com that was denied applied to Martin Scriven.

“I’m not going to comment further beyond saying that we’ll be asking the
judge for some clarification,” Amazon.com’s Curry said.

Other defendants listed in Hendrickson’s suit couldn’t be reached for
comment.

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